Article 36/2022

On what basis did the labour appeal court recently, in SA Teachers Union obo Kruger v Gauteng Department of Education and Others (2021) 32 SALLR 12 (LAC); (2021) 42 ILJ 827 (LAC), determine that the remedies of compensation and reinstatement cannot be granted simultaneously?

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The principles identified by the court entail, amongst others, the following:

in the case of a dismissal for misconduct or incapacity: being substantively or substantively and procedurally unfair

  • the primary relief is reinstatement or re-employment
  • the employee is to resume employment on the same terms and conditions as at the date of dismissal
  • the extent of retrospectivity is dependent on the discretion to be exercised by the arbitrator – the only limitation on such discretion is that it cannot be fixed earlier than the actual date of dismissal
  • compensation is an alternative relief to the primary relief and is mutually exclusive to the remedies of reinstatement/re-employment

dismissal for operational requirements/automatically unfair: substantively or substantively and procedurally unfair

  • the same principles as set out above apply here subject to s193(3) of the LRA – in addition, any other order may be made as considered to be appropriate

dismissal for misconduct/incapacity/operational requirements/automatically unfair: procedurally only unfair

  • in terms of s193(2)(d) of the LRA, no reinstatement/re-employment is applicable but only compensation

The scenario is as follows: an employee is reinstated, not to the date of his dismissal but limiting the employee’s entitlement to remuneration to 24 months.  The employee argues that he or she is entitled to interest on the back pay payable for the 24-month period in terms of s75 of the Basic Conditions of Employment Act 75 of 1997.  Is the employee, according to Mashaba and Another v Telkom SA Soc Ltd (2020) 31 SALLR 147 (LAC); (2020) 41 ILJ 2437 (LAC), entitled to be paid interest on the back pay from the date of the judgment or, alternatively, entitled to also be paid interest in respect of the periods before the judgment?

A reinstatement order does not in itself reinstate an employee.  How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC), determine the consequences of such order and how is such reinstatement order enforced?

What is the distinction between s50(2)(a) compensation and s50(2)(b) damages of the EEA and compensation when an automatically unfair dismissal, in terms of s187(1)(f) of the LRA, occurs?